Recent changes in sentencing law, in the wake of cases interpreting Blakely v. Washington and United States v. Booker, have raised the possibility that courts sentencing parents may take children's interests into account more extensively than had previously been permissible. Now is thus an opportune time to reevaluate the merits of considering children's interests when sentencing parents. This Article uses the perspective of family law to offer a new rationale for, and a new approach to, taking children's interests into account when sentencing their parents. It does so by bringing out the connection between the debate over parental incarceration and another ongoing debate within criminal law: the discussion about when we can attribute criminal responsibility to adults. Criminal law holds adults responsible for their actions by treating them as if they are autonomous, even when they are not. Family law's insights about child development, meanwhile, demonstrate that incarcerating parents may diminish a child's likelihood of becoming an autonomous adult. This Article argues that if the criminal law is to treat children as if they are autonomous when they reach adulthood, then it has an obligation to take seriously those actions that may reduce a child's future autonomy, such as incarcerating a child's parent. Parents should not be immunized from incarceration. But a court incarcerating a parent should do so only after assessing the interests of the offender's child, and determining whether it can meet the goals of criminal punishment through means that minimize harm to that child. Articulating children's interests when incarcerating parents would bring childhood experience out from the shadows of family law, and would force courts to acknowledge the extent to which parental incarceration reshapes families and thus alters children's lives.
Criminal Law | Family Law
Abramowicz, Sarah. Rethinking Parental Incarceration. 82 U. Colo. L. Rev. 793, 876 (2011)